MICHAEL SCOTT CROSS, APPELLANT,
v.
CRAIG KALINA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Michael Cross appeals a trial court's denial of his motion to abate or dismiss, challenging the court's personal jurisdiction based on ineffective substituted service. The appellate court reverses, finding that the plaintiff failed to demonstrate the requisite diligent search and inquiry before attempting substituted service under Florida statute.
The court holds that substituted service was ineffective because Kalina failed to demonstrate due diligence in attempting to locate and serve Cross. A single mailed letter does not satisfy the plaintiff's burden to show diligent search and inquiry before employing substituted service.
[1] A plaintiff must demonstrate due diligence in attempting to locate a defendant before substituted service of process is effective.
[2] A single mailing to a defendant's last known address does not satisfy the burden of showing a diligent search for purposes of substituted service.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A plaintiff may not use substituted service of process allowed by sections 48.161 and 48.171 unless it is shown that efforts have been made to find the defendant.”
Establishes the fundamental legal requirement that a plaintiff must demonstrate diligent search before employing substituted service.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKalina filed an amended complaint against Michael and Virgil Cross for negligence arising from an automobile accident. Kalina attempted to serve the C…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Burden Of Proof For Service cases and more on FLexlaw
THOMPSON, Justice.
Michael Scott Cross (“Cross”) appeals the trial court’s non-final order denying his motion to abate or in the alternative, dismiss. Cross argues that the trial court lacked personal jurisdiction because Craig Kalina, the plaintiff below, never established that he made a diligent search and inquiry before using substituted service. §§ 48.161, 48.171 Fla. Stat. (1995). We find Kalina did not meet his burden, thus his use of substituted service on Cross was ineffective.
Kalina filed an amended complaint against Michael and Virgil Cross, alleging that Michael’s negligence caused Kalina injuries sustained in an automobile accident. Only Michael is involved in this appeal. Kalina’s amended complaint alleged that he attempted to serve the Crosses by registered mail at an address in Lake Alfred, Florida. They could not be served at the address, and Kali-na alleged that Michael and Virgil were nonresidents of Florida or they were concealing their whereabouts, and that he used substituted service because their whereabouts were unknown. Kalina’s supporting affidavit stated that a copy of the process and amended complaint had been mailed to the Florida Secretary of State. In the affidavit, Kalina further stated that the notice of service and a copy of the amended complaint were sent by certified mail to Michael and Virgil, and that the mail was undeliverable as addressed because the forwarding order had expired. No other allegation of diligent search was made.
We determine that substituted service was ineffective in this case because Kalina failed to show he exercised due diligence in attempting to locate and serve Cross. A plaintiff may not use substituted service of process allowed by sections 48.161 and 48.171 unless it is shown that efforts have been made to find the defendant. Here, other than one mailing, there is no evidence that any effort was expended to locate Cross. One mailed letter does not satisfy Kalina’s burden. Permenter v. Feurtado, 541 So. 2d 1331 (Fla. 3d DCA 1989). See, Knabb v. Morns, 492 So. 2d 839 (Fla. 5th DCA 1986) (hiring of private investigator not enough to establish due diligence when investigator failed to utilize obvious and available resources to locate defendant). Furthermore, we cannot determine from conclusory statements in Kalina’s affidavit that a diligent search was made. Barriat v. Salahud-Din, 389 So. 2d 1216, 1217 (Fla. 3d DCA 1980).
We reverse and remand for proceedings not inconsistent with this opinion.
REVERSED and REMANDED with directions.
DAUKSCH and GOSHORN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Delancy v. Tobias, 26 So. 3d 77 (Fla. 3d DCA 2010)…o. 2d 457, 460-61 (Fla.1955) (quoting McDaniel v. McElvy, 91 Fla. 770, 108 So. 820, 831 (1926)); see also Dubois v. Butler, 901 So. 2d 1029 (Fla. 4th DCA 2005); DeVico v. Chase Manhattan Bank, 823 So. 2d 175, 176 (Fla. 3d DCA 2002); Cross v. Kalina, 681 So. 2d 855 (Fla. 5th DCA 1996). Here, Delaney made “an honest and conscientious effort” to obtain information that would enable her to serve Tobias personally. She therefore demonstrated the requisite diligence in attempting to locate Tobias and his avoidance…
-
Sonia Dubois & 9060-0677 Quebec, Inc. v. Butler, 901 So. 2d 1029 (Fla. 4th DCA 2005)…r Vehicles; because the plaintiff did not check the telephone directory or investigate the address disclosed in interrogatories by the defendant’s insurer, the court held that the plaintiff failed to exercise due diligence. See also Cross v. Kalina, 681 So. 2d 855, 856 (Fla. 5th DCA 1996) (while the plaintiff made an effort to serve the defendant through registered mail, plaintiff had failed to use due diligence: “Here, other than one mailing, there is no evidence that any effort was expended to locate [the d…
-
Tire Grp. Int'l, Inc. v. Confianca Mudancas & Transportes, 776 So. 2d 1057 (Fla. 3d DCA 2001)…e individual defendants in one envelope addressed to a corporate defendant and did not attempt to obtain a better address for the individual defendants, nor did Tire Group attempt any search for them within the State of Florida. See Cross v. Kalina, 681 So. 2d 855, 856 (Fla. 5th DCA 1996) (“A plaintiff may not use substituted service of process allowed by sections 48.161 and 48.171 unless it is shown that efforts have been made to find the defendant .” The same requirements apply to service of process under s…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Knabb v. Morris, 492 So. 2d 839 (Fla. 5th DCA 1986)
- Permenter v. Feurtado, 541 So. 2d 1331 (Fla. 3d DCA 1989)
- State v. Clark, 389 So. 2d 1216 (Fla. 3d DCA 1980)
- Barriat v. Autley F. Salahud-Din, 389 So. 2d 1216 (Fla. 3d DCA 1980)